How Dare You Make My Content More Valuable!

from the it's-not-so-tricky dept

Perhaps it's not that surprising, but it's a bit upsetting to still see so many people having difficulty with the idea that having others increase the value of your content is a good thing. There are the obvious cases, such as the entertainment industry lawsuits against sites and services that help promote their content. Or, publishers and authors suing Google over their book scanning project that basically will create a tremendous card catalog for books that is already helping to drive more sales. Earlier this year, in looking at some of these cases, it seemed that the only way to make sense of them was to chalk it up to jealousy. These other services were generally making some money themselves, but they were doing so by making others' content more valuable. That should be a win-win for everyone. After all, they weren't charging the original content owner to make his or her content more valuable, but just doing so on their own -- and therefore there should be nothing at all wrong with them monetizing that value for themselves. The payout to the content owner is increased anyway.

However, something started to become clear last week, when we wrote about the similar misunderstanding from News.com editor Charles Cooper, in that he claimed that Google was making money and giving nothing back. Specifically, Cooper was upset about the lack of a monetary payout, even though the content he produced is available for anyone to read free online. The problem was that Cooper had difficulty realizing that Google was paying. It was paying by driving additional traffic to News.com (and plenty of other sites) by providing a service that people enjoy using to find news. This weekend, a very similar situation played itself out. Jason Calacanis, the founder of Weblogs Inc., which is now owned by AOL, threatened to sue any RSS aggregator that placed ads next to any Weblogs Inc. RSS feed, and reiterated his claim that their full content (with ads, mind you) RSS feeds are for "individual and non-commercial use only." Almost two years ago, we had a discussion about how exactly this issue concerning RSS feeds was destined to be a messy situation.

How do you define individual and non-commercial use in this context? As we wrote at the time, if an investor reads something and makes a trade on it, is that non-commercial use, or does the trader owe Calacanis or AOL some money? What if someone views the feed in their Gmail account that has ads down the side? Is that a violation? How about the old Opera browser that had ads showing across the top? Someone in the comments to Calacanis' post notes that he paid for his RSS aggregator software and now uses it to read Weblogs Inc. feeds. Does Calacanis deserve some of the money that was used to pay for the aggregator? With Techdirt's InfoAdvisor product, we build information portfolios for customers that include (among other things) RSS feeds that they should read, where we manage the feeds (setting it up so when they login they see what they're subscribed to without having to bother figuring out how to subscribe and how to unsubscribe from stuff). Companies pay us for this. If we recommend a Weblogs Inc. feed, is that against their terms? Just to be safe, I've instructed our analyst staff to no longer include any Weblogs Inc. feeds for our customers. This is a shame, because sites like Engadget provide excellent content. Instead, we'll need to replace them with other gadget blogs to remain on the safe side.

Again, it's a situation where it appears that one side is oblivious to the value provided by the other. Calacanis complains in the comments to his post that it's a case of "let us make money off your backs and do nothing for you in return." Except, that's not true at all. We provide value by helping get people at various companies reading the content on his blogs. Newsgator and any other RSS aggregator does a ton in return for Weblogs Inc., in getting a lot more people regularly reading their content, pointing to it, commenting on it, writing about it on their own blogs and much, much more. In all of these cases, from Cooper to Calacanis to book publishers to the entertainment industry, they ignore the value these services provide back to them in increasing their traffic, giving them lots more attention and generally helping them get more viewers/buyers/customers... and they're doing it all for free. As with Cooper, where I suggested Google send him a bill, Newsgator should consider sending Calacanis a bill for all those years of freely delivering Weblogs' Inc. content to hundreds of thousands (if not millions) of readers who probably wouldn't bother to visit his sites otherwise.

Come on...

You know the difference between recommend our feed and selling advertising against it!

If we allow folks to sell advertising against our FULL content then we will lose 90% of our revenue. People will republish Engadget and Autoblog, call it an RSS reader, and sell ads against it.

Web-based RSS readers are just webpages at the end of the day.

Now, if someone wants to do a partnership with us to monetize our feeds we are all ears! We have many partnerships like this including one with Feedburner.

The RSS reader companies are just lazy in my mind... Feedburner has made a business out of feeds by GETTING PERMISSION and the reader companies could do this as well if they wanted to.

You might be right that SOME folks might provide value to us by promoting our feeds, but the majority of reader companies provide us no value, and if we let them sell ads on our content we will not be able to pay our bloggers.

it really is that simple.

Just becase we publish an RSS feed doesn't mean you can break the terms by which we provide that feed (in this case for *individuals* to use and *not* make money off of).

Re: Come on...

You know the difference between recommend our feed and selling advertising against it!

I know that you said "individual, non-commercial use" and my point was only that that's not clear at all. Are you giving us permission to recommend your feeds? If so, should we need to get permission first?

If we allow folks to sell advertising against our FULL content then we will lose 90% of our revenue. People will republish Engadget and Autoblog, call it an RSS reader, and sell ads against it.

This makes no sense to me at all. It's your feed, you control it. You already have ads in it. Where do you lose 90% of your revenue?!?

Besides, as I've pointed out here plenty of time, we have people who scrape our feeds and republish it on their sites all the damn time. Sometimes they put up ads around it. I know of at least 6 sites that right now, as we speak, repost all of our content with their own ads. You know what? I don't care. Those sites are obviously crappy sites that no one will ever visit, and anyone with half a brain knows to go to the original. As long as we provide value, we're confident people will come back.

Are you so unsure of the value you provide that you don't think people would find your sites directly if others copied them?

The RSS reader companies are just lazy in my mind... Feedburner has made a business out of feeds by GETTING PERMISSION and the reader companies could do this as well if they wanted to.

Feedburner is a great company, and I know a few of the folks there and consider them friends. But Feedburner is an RSS hosting and metrics company. They're not an aggregator company.

You might be right that SOME folks might provide value to us by promoting our feeds, but the majority of reader companies provide us no value, and if we let them sell ads on our content we will not be able to pay our bloggers.

No value? How so? They're helping more people read your content (including viewing your ads, getting people to click through to read comments, etc.) the way they *want* to read your content.

And, again, you never explain why you won't be able to pay your bloggers. At no point are your ads taken away. At no point do you *lose* any revenue. If anything, you're getting a lot more readers who give you more inventory.

The ads being placed by the aggregator are outside of your content. They're within the software itself, and they're not selling ads "on your feeds." They're selling ads based on the users of their software, some percentage of which read your feeds.

Just becase we publish an RSS feed doesn't mean you can break the terms by which we provide that feed (in this case for *individuals* to use and *not* make money off of).

Again, you go back to this point, ignoring that it's not at all clear from that description. First you say that recommending your feed isn't a problem, but it's for commercial purposes. The point is that almost any commercial use of your feed is probably done in a way that benefits you too.

Re: also...

Also, the Google comparison is just silly. Google takes a SMALL fraction of the someone's content--not all of it. This is called fair use and we all know it's totally legal.

Hmm. The point of the Google comparison wasn't to say it was exactly the same, but that the *breakdown* is the same: in both cases, the complaints are from people who fail to recognize that someone else is adding value to their content. That still holds.

Re: also...

"Fair use" in the case of Google News is, in readership terms, probably nearly "all use." Most people use the Google News page as a "briefing" page, simply skimming the headlines and excerpts. I would bet that stats would show a very small rate of actual clickthroughs on the headlines, which means the content providers get little or nothing out of that "fair use."

Most people are satisfied with simply reading the headline and first graph of stories. No need to click on anything and read more if you've already got the gist of it. Newspapers allow themselves to be screwed by "fair use" online.

Ads? what ads?

I think you are missing a point here, both of you. I may not be in the majority (maybe I am) but I very, very rarely even see what's in an ad, let alone click on it. Ads have become so intrusive and annoying that I am more inclined NOT to click an ad, and in some cases, not visit the site showing the ads ever again. I am definitely visiting for the content.

Just to note Mike. I read TechDirt every day, and have a module on my customized google homepage that shows me the last 3 posts. Keep up the good work. I find the site engaging and always fresh. I definitely concur with your point of view.

and for Jason, I would have never heard of your site if it weren't for TechDirt. Are you sure you aren't just playing the Streisand Effect card to get some more readers? ;)

Re: Ads? what ads?

Totally agree with what he said. I have 4 or 5 story headlines on my Google Homepage and often visit to read up on the latest stories. Love the site, keep it up. I'm often blown away with how utterly stupid or ignorant people are, such as the Telcos and recording execs who some how find a way to screw up innovative ideas or products. glad I have a place where I can read up on tech info. Thanks again

THIS is what that Cooper article was about

"Web 2.0 as a metaphor for 'rip-off
CNET News.com, CA - Oct 20, 2006
... The European court struck at the heart of the Web 2.0 assumption that it's perfectly all right to profit from another company's content without permission and ..."

That was it. 232 characters.

I did a news search and Google showed me that snippet of the article with citation and a VERY brief bit of the text that is closely analogous to an abstract. It then provided a link to that article. If I was interested, I could click through to the article and read it. I would then see the article all the ads that paid for the article.

We are not talking about Napster, Child pron, or any of the other bugaboos that people through up to confound and inflate.

This is a service that connect customers (me) and a seller (CNET). AND THEY KNOW IT.

This seems like a very disingenuous attempt to stir up something in a teapot when the actual purpose is to generate publicity for NEWS.com and Mr. Cooper. If they really think that Google is IMMORALLY STEALING their content, then they should just stick a robots.txt file in the root of NEWS.com and block all search engine traffic.

Go ahead and lock the door. Too bad if they also lock out a bunch of their customers.

I agree with Jason

Reading over at his blog, I noticed that his issue is not with RSS feeds and companies that use them. His issue is that they offer full articles as RSS that are meant for just individual use, while they offer a "headlined" version that companies can put their ads near because the user would have to click on it to view the full article on their page.

Maybe it's not the best way to do things, and maybe they should just drop the full article RSS feeds, but they allow it for individual use only and don't want companies making money off their full feeds. I don't see a problem with this as they have a very workable solution for those who will put ads there to make money.

So really, this isn't as big an issue as it seemed here, and it looks like Mike kind of put a twist on what he wrote to make it seem that Jason didn't want companies using their feeds at all with any ads on them. Maybe Jason's site changed since this came out, but from how I see it, I don't see a problem with what he's suggesting.

Re: I agree with Jason

His issue is that they offer full articles as RSS that are meant for just individual use, while they offer a "headlined" version that companies can put their ads near because the user would have to click on it to view the full article on their page.

But, again, what's commercial use and what's individual use? Why won't anyone answer that question? If we're recommending someone read his feed, can we offer only the snippet one instead of the full one? Even if it's an individual reading it?

Secondly, a little while back, there were some test done that showed snippet feeds generate a lot less traffic, because they're not what people want to see.

So how do you deal with the Newsgator situation. Say I use Newsgator, and for my own personal, non-commercial use I *want* the full text feed? But then Newsgator puts ads in their software. Suddenly Jason is harming me by forcing me to use his crappy feed, even though I *am* using it for personal, non-commercial use.

The point is that you can't just set this arbitrary boundary that isn't clear at all. It's not only pointless, it tends to do more harm in the long run. It would be nice if everyone could say "oh, this is commercial use, this is not" but you can't. So, it's silly to even suggest that because it's totally meaningless.

Re: Ads? What Ads?

I found this article, from a snippet that i got off slashdot from a link in my customized Google homepage. I was linked to slashdot, which has ads supporting it, and enough information for me to know if I wanted to get the whole story (here at Techdirt) or if i was satisfied with the snippet on slashdot.

I too agree with Jason

Again, it's a situation where it appears that one side is oblivious to the value provided by the other.

Well, that's for the content provider to decide. Someone may think that he adds value by breaking into my house every day and stealing my unhealthy fatty hamburgers, but that's not for him to decide. It's my property, and It's me who decides what adds value and what doesn't.

Individual and non-commercial use is plain enough for anyone who wants to understand it and doesn't want to play deconsctruction games. The fact that there are some borderline cases does NOT mean that EVERY case is borderline. Putting ads against the content is CLEARLY NOT "individual non commercial use".

Re: I too agree with Jason

Well, that's for the content provider to decide. Someone may think that he adds value by breaking into my house every day and stealing my unhealthy fatty hamburgers, but that's not for him to decide. It's my property, and It's me who decides what adds value and what doesn't.

Actually, that's not what the law says. If the company is not directly removing any revenue from you (and Jason still doesn't explain how any revenue has been lost), then he's going to have a hard time making his case in court. If there are no damages, and someone else is helping you, what can you do.

Say, for example, you have a store that's hard to find. But, I like your store, so I help guide people to your store. Maybe, as part of that, i sell them maps. That's helping them, but I'm making money off of your store.

By your reasoning, I would be breaking the law here.

Your comment about someone breaking in and stealing is a non sequitor and totally irrelevant. In that case, the law is clearly being broken.

Individual and non-commercial use is plain enough for anyone who wants to understand it and doesn't want to play deconsctruction games. The fact that there are some borderline cases does NOT mean that EVERY case is borderline. Putting ads against the content is CLEARLY NOT "individual non commercial use".

I would argue that almost every case I can think of is a borderline case. I would also argue Newsgator, in this situation, is not "putting ads against content." They're putting ads in their software that happen to be contextual to the content you're viewing. This is the same thing Gmail does and it's perfectly legal.

It's kind of funny that I can copy and paste a webpage and sell the content, but I can't copy and sell a book.

I guess all of you in favor of the increasing value-theory actually think that I selling 2 chapter of someone elses book also should be legal - since that would lead to them, hopefully, buying the book.

Re:

I guess all of you in favor of the increasing value-theory actually think that I selling 2 chapter of someone elses book also should be legal - since that would lead to them, hopefully, buying the book.

Except, of course, that the content we're discussing is available free of charge on the web. We're not discussing reselling someone else's work, but making money by promoting their works. That's different.

On one side we've got the guy saying that what he's doing is outside of the other persons business (or simply website) and therefor can't reduce the value of that other persons business, all he can do is add to it; on the other side we've got the guy thinking that all business related to his business/work/website is his market, and that all money made within it should be his.

Both sides are, of course, wrong; and, of course, they're both right.

Having a service that will send my information and my ads to people is great, but only as long as those people otherwise wouldn't have gotten the information and (even more) ads using the interface (ie website) that I control myself; the day I find that the prefered interface to my information is controlled by someone else I'll realize that although my ads are shown, only maybe 20-50% of the total number of ads will actually give me money, and that if the interface is more important than the information then I can be replaced very easily - there's no real loyalty, and the value of my brand is going out the window, straight down, into the gutter and eventually it'll be eaten up by the New York sewer alligators.

When that day comes I need to do something; I could make sure that my information won't ever easily be replaced at those other interfaces and change my businessmodel accordingly, but that's risky... being a businessman I don't like "risky", esp. not when I'm just fighting to keep what I've already got... so I'll go with the classical "I'll try to turn back time"-solution, which of course means doing a lot of bitching, yelling and calling in the laywers.

We do know that lawyers are often used as a solution, but what's actually the problem that they're trying to solve this time? Well, if our information is good it's the interface that's not... and unless our lawyers happen to be great at (G)UI-design they're not really the solution which we're looking for.

Send in the design-guys instead, and while they're working on a better interface we send in the tech-guys, which make sure that the information is available in only the formats which we want it to be available in; let them do all the usual user-agent-sniffing and rewriting and blocking and membership-extras and whatever is available to make sure that we control the information and how it's presented to our readers.

Sure, if the information is available it can be rewritten and published in other formats, but if the tech-guys are doing their job right people can't easily take our information and republish it without obviously doing so without our permission; they can't just take an open feed and republish it. And what if the meanies do it anyways, well... here be lawyers.

Ok, so what if we do that and we're still in trouble? Bad news... we've got a faulty businessmodel. It might have worked yesterday, but this is today, and we've got to keep up.
If we think our businessmodel is so bad that it'd just be a waste of time and money to send in the design- and tech-guys, then we can of course skip that and go straight to the bitching and lawyers; but then there's even more bad news, SCO's already tried that businessmodel, and we all know how well that went... then again... it might be enough to keep up with the payments on our new we-just-had-to-have-it-when-the-businessmodel-did-look-good-thingie long enough for us to either pay it off or find a new job... so... hey... send in the lawyers, after all, it's the american way of life...

AOL is as bad

AOL is trying to drive traffic to thier site off the back of it's paying customers.
If you use webmail to send an e-mail it checks the to address and if it is not another AOL customer it places the following at the bottom after the mail is sent without you knowing! The trouble is that it can cause your mail to get caught in spam filters. Thanks AOL!
(Check out the new AOL. Most comprehensive set of free safety and security tools, free access to millions of high-quality videos from across the web, free AOL Mail and more.)

Actually, that's not what the law says
Actually this is EXACTLY what the law says for IP. The other side does not need to prove any kind of "revenue lost" thing you speak about. You are not allowed to reproduce his contents in unahothirzed ways, barring fair use which is not the case. period.

Say, for example, you have a store that's hard to find. But, I like your store, so I help guide people to your store. Maybe, as part of that, i sell them maps. That's helping them, but I'm making money off of your store.

Irrelevant. We are speaking about copyrights and content reproduction.

Except, of course, that the content we're discussing is available free of charge on the web.
Irrelevant. "free of charge on the web" does not make it public domain. The owner preserves full rights, including the right of restricting reproduction.

They're putting ads in their software that happen to be contextual to the content you're viewing.

Which happens to be the same as "putting ads against content".

This is the same thing Gmail does and it's perfectly legal.
Except that GMail does it for user-created and owned contents, and that both sides (sender and recipient) have consented to having the contents produced and owned by them reproduced in that way, which is not the case.

Re: Techdirt is missing the point

There *is* revenue lost. I'll bet that ads in the feed make *much* less money than ads shown on the site. Maybe a factor of 10.

No. There is potential revenue lost, which is a different thing and is not illegal.

You also make a very, very wrong assumption that if you have a full text feed no one will visit your site. If that were true, than Jason should never offer full text feeds at all. However, I can tell you from experience that full text feeds tends to drive *more* traffic to the sites where more expensive ads may be shown. That's because more people are willing to subscribe, more people actually read the whole thing, more people go to the page to comment, more people link to your posts from other sites and more people tell others to read your blog.

And, the Google analogy supports Jason not Mike. If Google displayed the full text of copyrighted books, that would get shut down in a heartbeat.

Again, the point was not a direct comparison, but a comparison of the breakdown in the discussion. In both cases, the people think that the other service provides no value which is flat out wrong.

However, even if you want to go down the rabbit hole of demanding exact similarities, I still think it supports our view more than yours. The book thing is different because Google is scanning a book. If a publisher put full content online for free, and you visited it with Opera's ad-supported browser, that's perfectly legal. If you visit Jason's feed in Opera's ad-supported browser, that's perfectly legal. Why is it suddenly illegal if you visit it with Newsgator's ad-supported browser?

Who gives a shit.

Let Me Enlighten You

It really makes no difference what sort of argument you make or what kind of advantages an author or publisher might receive-- the fact remains: The content is owned by the author and/or publisher and the author and/or publisher has every legal right to control how his property is used. Your examples are tantamount to my renting your home to a third party and giving you SOME of the rent without ever asking you if it was okay to move others into your home. You wouldn't stand for it and you'd have every right not to.

Fact is: There might be a million reasons why it's advantagous to authors and publishers to let the senarios you describe continue but Intellectual Property is in-fact real property just as real as realestate and right or wrong no one has the right to tell me how to take care of MY property.

Perhaps you'd like to post your home address so I can start advertising for your new roommates-- I might even give you part of the rent I collect.

Re: Let Me Enlighten You

It really makes no difference what sort of argument you make or what kind of advantages an author or publisher might receive-- the fact remains: The content is owned by the author and/or publisher and the author and/or publisher has every legal right to control how his property is used

This is not true. Copyright is designed to give content owners some control, but not full control over their works. So, you can't make a blanket statement that the author and publisher have every right to how their property is used. They do have some control, but if they put content for free onlien and someone uses an ordinary browser to view the content that was legitimately put online... there's no violation. Even if that browser has ads.

Your examples are tantamount to my renting your home to a third party and giving you SOME of the rent without ever asking you if it was okay to move others into your home. You wouldn't stand for it and you'd have every right not to.

That's very different, since there's a scarce resource here. Your analogy fails completely. Instead, let's go back to my map analogy. Let's say people like to visit your store, but they have a hard time finding it. What if I start selling maps to your store. I make money, and am pointing people to your store. That's all newsgator is doing. They're making money by pointing people to Jason's content.

Fact is: There might be a million reasons why it's advantagous to authors and publishers to let the senarios you describe continue but Intellectual Property is in-fact real property just as real as realestate and right or wrong no one has the right to tell me how to take care of MY property.

Turn in your law degree. Intellectual property is extremely different from real property. Look it up anywhere. Real property does not expire and go into the public domain. Real property is rivalrous, intellectual property is non-rivalrous. You can steal real property, but only infringe intellectual property. Real property has non-zero marginal costs. Intellectual property has zero marginal costs. There is no such thing as "fair use" for real property, but there is for intellectual property. The list goes on and on and on. The same rules do not apply to both and saying they do does not make it so.

Remember news framing

Reminds me of the early days of the web when some sites sprung up that took news from the main sites and put it in a frame with their own advertising placed around it. I think one of them was called Newshub... I think the news providers won that one but I'm not sure... Anyone else remember how that turned out?

re book comment

I guess all of you in favor of the increasing value-theory actually think that I selling 2 chapter of someone elses book also should be legal - since that would lead to them, hopefully, buying the book.

As somebody who's published a book I can honestly say that I've made about 80% of my book's content availble on the website, and it caused sales to increase.

Doesn't the problem solve itself?

If the value created by aggregators driving traffic truly is greater than whatever loss a company like Weblogs perceives to exist, won't those companies who are allegedly being over-protective of their author's rights perform poorly in the marketplace relative to those that take advantage of republication?

If republishers elect not to carry feeds from Weblogs and that truly is essential for Weblogs to realize optimal profits, they'll at minimum suffer in the marketplace, and at worst cease to exist.

Defining what's commercial is an interesting exercise, but I think it's easy to create a bright line and distinguish between when an individual, whose intent is personal usage places a feed in a reader that shows ads who benefit a third party versus an individual or company uses a feed with the intent of profiting directly and monetarily from those ads.

RE Ryan

Ryan,
That's great for you! I too am a published author and have actually profited from placing entire books online and free for all to enjoy, but that was my choice. The freedom to decide how one's content is used and who profits from it is up to the person who owns the copyright. How would any of you feel if your fiercest competitor started selling your products and paid you ONLY what they claim it's worth. When authors and publishers are allowed to sit at the table and discuss their options the process will become fair, but thus far the creators of content haven't been given a voice.

It's my home and I have the right to control who sleeps under my roof and who eats my groceries.

wait, let me get this straight...

Mike,
I would love to see the links to the Library Of Congress website (The folks that control copyrights) that prove the points you so ineptly tried to make. Show me the links, Mike, not links to some BS web publication like Techdirt, but links to the Library Of Congress website.

Re:

Copyright law is public for anyone to look at, so I'm not sure why you were unable to find it yourself.

Which points did I get wrong? Where does it say that intellectual property is the same as physical property? It doesn't. It points out that copyright has a term limit, which real property does not. Fair use is in there to.

The other points (rivalrous/non-rivalrous, marginal cost) are simply factual. They're basic economics and the legal standing is separate from that.

Emotional Property

I think some of the writers here are getting a little bit emotional about this issue. It's strange how people really buy into the whole 'property' part of intellectual property and start making comparisions with stealing stuff from their house.

Like Mike said, these resources are not scarce so most of these comparisions don't apply.

The action of reading something does not consume the item. If someone releases something for free, with attached ads, with the intention of letting some group of people read it, a third party assisting said people in reading the initial release - with the attached ads - can not reasonably be said to be profiteering.

Now if the original content is not for free or not meant to be available to the general public there can be a discussion.

the wrong guy is complaining

I do not understand why this **** is complaining! The ones who should be complaining are the original advertisers whose ads do now NOT appear beside the content. THEY paid for it. THEY should be the ones who "own" it - assuming the original author has given up ALL rights by selling it in the first place. The only issue I see here is that the original author should get credit for writing it, and the "copiers" SHOULD properly and completely GIVE CREDIT to the SOURCE. The ORIGINAL advertisers should now have some claim on the "republisher". The original publisher needs to rework his marketing - get the advertisers of the "republisher" to support the ORIGINAL - not some "photocopy".

Re:

My content remains my content until 70 years after the day I die-- I should be the one who says how it's used.

Well, unfortunately for you, that's not what copyright law says. You do have *some* controls, as outlined by copyright law. But you do not have full control. You do realize the purpose of copyright was to outline the rights concerning copying: not to give full control to the originator?

And if you drive to the mall you're entering private owned public property which, as long as you're shopping is really nothing more than fair use of someone else's property.

Uh. Again, that's a different situation, because the property has publicly opened itself up for visitors. That's not "fair use." That's explicit permission.

As for finding links: Linking to one page at the Library of Congress is a pretty piss poor way to make your point.

Ah, you missed my point. I was saying that I'm not here to be your research librarian. I'm not sure why your inability to understand copyright law demands that I point the law out to you. I would expect that you can search and read for yourself. If you can't... again, that's not my problem.

So tell me Mike, do you have preferences for roommates or can I rent your place to anyone who has the cash.

I notice above you didn't refute my distinction between rivalrous and non-rivalrous goods (again, I suggest a good search engine might help you learn the difference). Personal space is a rivalrous good, making the situation entirely different. In that case, there's a clear loss. With someone putting ads around content as originally set up, there is not.

Re: Techdirt is missing the point

@Mike: thanks for engaging the debate. Techdirt is a worthwhile site, even when I disagree.

I can tell you from experience that full text feeds tends to drive *more* traffic to the sites where more expensive ads may be shown.

That may be true of TechDirt; I doubt it's true in general. And if it is, the whole issue is moot. As Rudy said above, if that approach makes more money in general, Weblogs Inc. will grow by adopting it and be surpassed by others if they don't. Engadget seems to be doing fine with these "handicaps" in place....

If a publisher put full content online for free, and you visited it with Opera's ad-supported browser, that's perfectly legal. If you visit Jason's feed in Opera's ad-supported browser, that's perfectly legal. Why is it suddenly illegal if you visit it with Newsgator's ad-supported browser?

I agree that the Opera case is a gray area. That doesn't make the overall issue less complex.

If a publisher puts a full book online for free (but with traditional copyright rather than a CC "share alike" license), they surely won't let me copy it to my site and show ads against it. When the full-page of newspaper articles are posted online, they don't allow wholesale copy/paste to a blog (even a "legit" blog that is adding commentary); that exceeds "fair use". How does Newsgator get away with displaying a full copy on their site -- with ad revenue?

You paint the issue as simple and with only one side; it's not. It may be true that *some* publishers are better off with your approach; there certainly is *not* an overwhelming body of evidence that this approach is better for all publishers.

Re: Re: Techdirt is missing the point

That may be true of TechDirt; I doubt it's true in general. And if it is, the whole issue is moot. As Rudy said above, if that approach makes more money in general, Weblogs Inc. will grow by adopting it and be surpassed by others if they don't. Engadget seems to be doing fine with these "handicaps" in place...

Well, I'd argue that if it is true of Techdirt it's probably a lot more true of other sites. In part, that's because we refuse to put ads in our feeds (no matter how often advertisers ask us). So you could argue that we're shooting ourselves in the foot. However, we track how much traffic comes from our RSS feeds, and it's an awful lot, and it's only grown and grown and grown. We've spoken with a number of other bloggers who have experimented with both full and partial feeds, and almost every one has said that they get more readers, more comments, more feedback and more links when they do full feeds.

As for Weblogs Inc., I agree that sooner or later they'll figure it out, but it appears they haven't yet. As for Engadget, most people get their full text feed, so I don't quite see how that supports your point.

I agree that the Opera case is a gray area. That doesn't make the overall issue less complex.

But the Newsgator situation is no different than the Opera one. Newsgator is simply a "browser" for WIN's feeds.

If a publisher puts a full book online for free (but with traditional copyright rather than a CC "share alike" license), they surely won't let me copy it to my site and show ads against it. When the full-page of newspaper articles are posted online, they don't allow wholesale copy/paste to a blog (even a "legit" blog that is adding commentary); that exceeds "fair use". How does Newsgator get away with displaying a full copy on their site -- with ad revenue?

You are viewing this incorrectly. Newsgator is not reposting WIN's content. Not at all. They're no different than a browser, reading and displaying content. It's just that it's WIN's RSS pages, rather than HTML ones. So your points about "copying" the content are not true.

Also, I'd argue that even if when we look at your examples, you run into problems. You claim that newspapers don't allow full copies. But they do. Every time you view a page, you've copied that page to your local hard drive. Is that illegal?

You paint the issue as simple and with only one side; it's not. It may be true that *some* publishers are better off with your approach; there certainly is *not* an overwhelming body of evidence that this approach is better for all publishers.

No one has yet explained clearly how this hurts WIN in any way. If he doesn't like full text feeds, don't offer them. That's his call. But to claim that an RSS reader showing ads somehow harms him without any benefit is flat out wrong. There's a huge benefit in getting people to read his content. THat's why people use Newsgator (or any other RSS reader) in the first place.

Re: Techdirt is missing the point

@Mike: No one has yet explained clearly how this hurts WIN in any way.

Er, that's not true. Jason claims that they LOSE REVENUE. You claim that TechDirt GAINS REVENUE. Jason's claim seems more plausible to me, but I'm willing to accept your claim at face value. Why is it so hard to believe that other sites may have different dynamics? It could be true that they're not measuring correctly; but that could be true for Techdirt too.

If he doesn't like full text feeds, don't offer them.

That's not the point; he LICENSES them under certain conditions.

Most content providers would equally object to their content being scraped from the Web page (instead of the feed) and re-displayed. You've said that you don't mind -- but doesn't that drive home that your business objectives are AFAIK different (get consulting revenue).

There's a huge benefit in getting people to read his content.

From a business standpoint, there's no benefit if they read the content without the ads. The typical Techdirt reader may ignore or even block ads, but the reality is that without ads, we would all be paying subscription fees for web content.

Re: Re: Techdirt is missing the point

Er, that's not true. Jason claims that they LOSE REVENUE. You claim that TechDirt GAINS REVENUE. Jason's claim seems more plausible to me, but I'm willing to accept your claim at face value. Why is it so hard to believe that other sites may have different dynamics? It could be true that they're not measuring correctly; but that could be true for Techdirt too.

Um. But I explained WHY we gain revenue, because it drives more readers, etc. Jason never explained how it loses revenue, since his ads are still shown. So I'm trying to understand the claim because it makes no sense that he could be losing revenue by having more people look at his feed.

That's not the point; he LICENSES them under certain conditions.

As I'm sure you're aware, you cannot put a blanket license on how content you put freely online is viewed. You can put text on your website that says "only people over 6 feet tall can read this" and the courts are pretty clear that such a license is meaningless. In Jason's case, he says that his free and open feeds can only be viewed in non-commercial readers/browsers -- but again, if they're free and open online that's not a valid license.

Most content providers would equally object to their content being scraped from the Web page (instead of the feed) and re-displayed. You've said that you don't mind -- but doesn't that drive home that your business objectives are AFAIK different (get consulting revenue).

Again, I believe that you don't seem to understand what's happening here. Newsgator is not "scraping" and redisplaying his content. It's simply reading his content the same as a browser does.

As for the point that our business objectives are different , that is very true, but the points I make are about our site traffic only and have nothing to do with our corporate revenue.

From a business standpoint, there's no benefit if they read the content without the ads. The typical Techdirt reader may ignore or even block ads, but the reality is that without ads, we would all be paying subscription fees for web content.

That's flat out wrong. The vast majority of people who read a website do so and ignore the ads. You're saying that Jason would be better off without those people?!? No way. Honestly, maybe about 2 to 3% of visitors actually click on ads. Yet, if Jason had *only* that traffic, his ad rates would be tiny -- even if they were all consumers who would click on the ads. The people who don't click on ads are valuable too.

Then take case two. People who don't look at ads 999 times out of 1000. Then they do. To you, Jason shouldn't want those 999 visits. The problem is that if you do that, you never get the 1000th visit.

Finally, you are being extremely shortsighted if you believe that the people who don't look at ads are not useful. Let's take the case of someone who NEVER, EVER looks at ads. Let's say they use every adblocker around. But, if they like something we write, they may send it to someone else, or link to it from their blog, or any number of other things that drives more traffic -- some of whom will look at the ads.

To claim that "from a business standpint, there's no benefit if they read the content without the ads" suggests a very shortsighted and misguided view of business.

But, more importantly, and bringing this back to the point: you claim there's no benefit to reading the content without the ads, BUT THE ADS ARE STILL THERE!!! Newsgator does not remove his ads. They leave them there.

Finally, I also disagree with your "reality" claim. If it wasn't ads, it could be something entirely different, but not necessarily subscriptions. There really are more than those two models out there.

Re: Techdirt is missing the point

You can put text on your website that says "only people over 6 feet tall can read this" and the courts are pretty clear that such a license is meaningless. In Jason's case, he says that his free and open feeds can only be viewed in non-commercial readers/browsers -- but again, if they're free and open online that's not a valid license.

Mike, This is a pure strawman argument. Of course you cannot technically restrict the type of person to whom your content is published, but you sure as heck can restrict others from republishing that content. I don't think you're accurately describing Jason's point. The non-commercial caveat goes to 'uses' not 'users'. I'm sure that the underlying logic behind the 'non-commercial' restriction is republishing. After all, if the commercial outfit merely consumed and didn't reuse the content, the issue disappears.

Newsgator is not "scraping" and redisplaying his content. It's simply reading his content the same as a browser does.

Again, a strawman. Sure, it 'reads' the stuff like a browser. The problem comes up with republishing it. What's do hard to understand about that distinction?

The vast majority of people who read a website do so and ignore the ads.

Of course, and this fact is cranked into the CPM/CPI rates. I don't see how it's germane to this issue, though.

If it wasn't ads, it could be something entirely different, but not necessarily subscriptions. There really are more than those two models out there.

In theory, maybe. But I doubt you'd disagree that ads (including sponsorships) and subscriptions comprise the vast bulk of the business.

Re: Re: Techdirt is missing the point

Mike, This is a pure strawman argument. Of course you cannot technically restrict the type of person to whom your content is published, but you sure as heck can restrict others from republishing that content. I don't think you're accurately describing Jason's point. The non-commercial caveat goes to 'uses' not 'users'. I'm sure that the underlying logic behind the 'non-commercial' restriction is republishing. After all, if the commercial outfit merely consumed and didn't reuse the content, the issue disappears.

Ok, so explain this. If I put a notice on my website that said "this website is purely for non-commercial use" and you viewed it in a browser that included ads and you visited it in your browser from work, you've now violated my terms of service. How is that any different? It's the same thing.

Newsgator is simply a browser of RSS feeds instead of HTML. Yet, no one thinks that you could put a license forbidding how HTML is read. Why do you then think it's okay to put a license up forbidding how RSS is read.

Newsgator is not "republishing" anything. They're simply displaying the content for a single user who asked for it, the same as your browser displays Techdirt of you when you ask for it.

Of course, and this fact is cranked into the CPM/CPI rates. I don't see how it's germane to this issue, though.

Nice of you to take the argument out of context. The original was responding to a claim that readers who don't read ads are useless. Now you're saying they're useful. I agree.

In theory, maybe. But I doubt you'd disagree that ads (including sponsorships) and subscriptions comprise the vast bulk of the business.

Again out of context. The point was that he claimed that if there was no ad model then it would have to be subscriptions. My point was that that's not necessarily true. The fact that those two models are popular right now is unrelated to that. If ads disappeared, you'd see a lot of other business models crop up pretty fast.

So isn't this just what Creative Commons licenses are for? Those who don't want others to profit from their work (even if it they profit from it) use a Noncommercial license. And its machine-readability means aggregators can easily see what they should aggregate what what not.

Rising above the noise a bit

While the copyright is in effect, the owner of content has the exclusive right to publish the entire work. Via the fair use doctrine, others can publish certain parts of the work, provided certain (rather subjective) tests are made. (And to Mike, it matters not on economic matters if the revenue impacted is current or prospective.)

The content owner's rights don't change if they choose to publish their work on a website, or in full-document RSS feeds. Most people feel that full-document RSS feeds don't make much sense, and I, in general, agree. Mike argues that good they produce for the publisher outweighs the loss of revenue (real or potential). While, as I just said, I share some commenters' skepticism about this, I assume Mike has data that supports his view, and I can also see how it might arguably do that (if the articles get read more and stimulate more interest for similar articles).

What no one has yet mentioned is that some content may not have copyright protection. For a news article, is the headline equivalent to the title of the underlying document? If so, there's a question because you can't copyright titles. Is the headline completely factual, or is it creative? If it's highly factual, there's some doubt as to whether it falls under copyright. Is the daily collection of articles a work of editorial art, or merely a factual rendition of what happened today?

Finally, I'd just like to emphasize that copyright protection is all about publishing a work, which generally means making it available to multiple other users. One may well argue that any person has a right to aggregate (or otherwise manipulate) whatever content to which that person has legitimate access. However, the moment that person shares the results of that aggregation with any other user, the action they're taking is publishing and it runs flat into the copyright problem.

This issue lurks underneath most of the discussions on 'Web 2.0' and mashups. Unless you transform the content you're using in some significant way that doesn't compete with the original content provider, you are probably at legal risk. As is obvious, the original content providers often encourage aggregation and mashups (which is pretty logical given the recognition, ideas, development, market feedback and/traffic they often get from such activity).

But the original content providers almost invariably restrict such use to something (somewhat vague) like 'personal and non-commercial' use. What this does is leave them the opportunity to impose licensing fees later when they feel that others are making real money on stuff derived from their content.

No one seems to be worrying (publicly, anyway) about this. But I think it's going to come out eventually, and then watch the screaming and indignation start (with venture capitalists screaming most loudly). The only worries for the original content suppliers is when to do this, and how to manage it so they don't look like ogres.

[Disclosure: I am NOT a lawyer, but I've tramped around these woods for a long time, and thought I'd share what I've come to understand about this important issue.]

recontexualized content promotion

nice to see other people having the same problem.
i can only speak from the perspective of an individual who makes video collages with the of fair use law in mind. the way i look at it, is, creatively recontexualizing other people's footage without stealing revenue from said content being used, should be looked upon as a free promotional service for the content holder. i discuss this rather awkwardly here:http://www.youtube.com/watch?v=0Xi7Q-jGJtg and here: http://www.youtube.com/watch?v=mhrvvAmjwco

however, its going to take an individual to illustrate this concept with a service dedicated to revealing to the closed minds who object to the idea of RCPs or recontextualized content promotion, the internet allows all the work to be tagged and controlled in the sense that any revenue inspired by RCPs can be measured and distributed to all those involved vis a vis the "library xerox machine" example from the above youtube links. anyone actually interested in working on any of this stuff let me know through my url at youtube.

the only constant is change (to content)

and there are point of sale and commissions for good suggestions revenue waiting to be benefited from mentally and financially, it's inevitable

Re: Techdirt is missing the point

Let me step back. I didn't mean to make it sound like I think this issue is black or white, because it's really kinda grey. Consider the following:

(1) if I scrape the content of the NYTimes.com and offer it to the public on my site, I'm violating copyright, right?

(2) If I suck up the NYTimes.com's RSS feeds and publish them to the public in my own format on my own site, that's the same copyright problem, right?

(3) On the other hand, if I scrape the NYTimes.com and create my own personal page that's accessible only to me, that's different, I think.

(4) Similarly, if I subscribe to the NYTimes.com's RSS feeds and display them in my newsreader, that's fine too.

In cases (3) and (4) it might be argued that, if I chose to overlay these private displays with ads, that's my choice, and NYTimes.com couldn't force me not to. However, in cases (1) and (2), they would, IMHO, have a solid basis to stop me. Clearly (to me, at least) there's some kind of line between these.

Offerings like NewsGator exist somewhere in the grey zone between these cases. On the one hand, if each and every user had to spend some significant time configuring the display, and if that display was exclusively available only to that user, it would seem more like (3) or (4).

On the other hand, if NewsGator provided a default layout that anyone could use without any configuration, there'd be very little difference between that and (1)/(2). If, for argument's sake, everyone chose to use the default layout, then what's the difference between that and (2)? That's what I mean by republishing.

Language

It appears that situation number 2 in Mr. Steichen's argument has the built in assumption that showing a copyrighted RSS feed constitutes 'publishing' it. Lets consider the implications for different interpretations of this:

1) Every viewer program of copyrighted RSS is illegal as it republishes content by its very nature.

If we allow this to be true, then no copyrighted RSS feed can be viewed, as viewing an RSS feed requires software tools.

Clearly this case must be false or there would be no point in publishing RSS feeds except to incite the illegal action of reading them.

2) Some viewer programs of copyrighted RSS are illegal as they republish content.

For this situation the question is why. Is an online software displaying RSS illegal? Is it more illegal if it displays advertisement? Is a standard PC based non advertisement driven RSS software legal? What if the viewer cost money? Is it only legal if it's free?

I don't think any reasonable person would claim that the price paid for the software is a factor in whether it is legal or not, regardless if the price is paid in cash up front or amortized over time by allowing the display of advertisement.

Another possibility is that an online RSS viewer would be illegal just because it is online. It's hard to see how that'd be the case though.

Finally,

3) No RSS viewers are illegal even if they 'publish' content.

This seems to me like the only plausible possibility. An RSS feed requires viewer software by its very nature. If you make an RSS feed freely available you are implicitly allowing people to use viewer software to view it.

Is it reasonable to say that copyright allows you to dictate the manner in which your material is viewed?

'Content may only be viewed using Microsoft software.'

'This newspaper may only be read while wearing Seebright eyeglasses.'

I think the general consensus about this is that for material that is legally available for the reader, the reader may use whichever means he or she pleases to view it.

Re: Language

I think several different concepts are getting mixed up here.

Copyright is, in effect, the right to prevent others from publishing a copy of (as distinguished from the underlying information content of) the copyright holder's work. (Note the word 'publishing'.) A copyright holder (or licensee) may (at their option) choose to make the work available to others, but may do so with restrictions (on, for example, how the work is consumed, etc.). Enforcement of these restrictions (unless they involve publishing) usually become matters of contractual arrangements.

A news publisher typically makes RSS feeds available because the publisher wants users with newsreaders to be able to access that content. They may (or may not) be amenable to a blogger sticking the feed on (and republishing within) their blog.

But they almost certainly do NOT want someone to use that feed in a way that competes with them for (ie, re-publishes the feed's contents to) the same customers. A blogger may be able to use the feed contents, but - legally - only if the publisher explicitly agrees to that use.

As regards the comment that: "material that is legally available for the reader, the reader may use whichever means he or she pleases to view it.", I couldn't agree more - provided that the reader's action is limited to an act of personal consumption.

PS: The above points are based on the assumptiion that the content of the RSS feed is of a type that can actually be copyrighted (which most newspapers assume is true). However, there is substantial reason to conclude that the type of material in many if not most news (as opposed to commentary and other types of article and document) feeds may not enjoy the protection of copyright. In such cases, the legal issues shift to Terms of Service, which is another entirely different bag of worms.

Late to the party

Just found this post. The one point I think most are missing and seems to be the sticking point to me, is that most perceive RSS display as reproduction and not transitory viewing.

We could get into the "storing content is memory is copying and is protected by law" or "viewing a web page saves it into a browser cache so it too is protected by law" debate, but there really is no reason here. If that were true then browsing the internet would be illegal altogether. Until Disney decides it's not legal, we'll just assume it is.

I personally have no idea how NewsGator does what it does, but if it is only a reader then they are not republishing content. They are giving users a gateway or viewing device to read content. They are not copying or distributing the content any more than the browser I'm reading this page in is distributing its content by storing it to memory and disk. Whether they display ads next to the feed is irrelevant. The book analogy goes out the window when you suggest that copyright holders start suing browser developers because their software was used to view a site that had a full unlicensed copy of their copyrighted material online.

I read feeds in Outlook and it has a barrier of entry of $100. Much more than any online reader will ever make off of an individual user in its lifetime. I don't see any sites claiming the ability to shut down Microsoft because of their commercial misuse of any of the feeds I'm reading right now. I believe it all comes down to perception. The web is still new in may ways and even though Calacanis claims to understand it, I don't think he has a grasp on what is really happening here and is falling back to the old school lawyer threats.

Now, if NewsGator is archiving those feeds (if a new user can see more information that was available from the feed at their time of subscription) then that would tell me that they are not transitory and are indeed in violation if the claims of exclusivity can be upheld in the first place. If they are presenting the content as their own, they would fall into the same position.

The best analogy I can find here is a play on the store and map guys provided above trying to mold it to an IP friendly version. (Google analogy) If your store sells paintings and I find that people seem to walk by me and ask how to get to your store and I provide them a map for a fee, did I violate your copyright? No. (RSS storing analogy) If you store sells paintings and I find that people are looking for them so I start selling copies of your work, am I infringing on your copyright? Yes. (RSS reader analogy) If your store sells paintings and I find that people are looking for them so I provide and telescope to view your paintings from my store and happen to sell them a map to get to your place, did I infringe on your copyright? I'd say no, but we should let Jason go ahead and pull the lawyers out of his hat to give us some precedent.

Gut response to the article and all the above, int

I never look at ads. But it wouldn't help if I did. I belong to the rather large population of English speaking people on the planet who do not live in the US, and thus cannot buy in the US.

Now I suppose that makes me and the rest of us out here thieves, since we are consuming the intellectual property without "paying" for it, no matter whether we view it through Jason's or Mike's help.

But nobody's bed gets dirty and no one's porridge is gone because of it.

But perhaps, if within the actual substance being provided there is truly useful information, motivation to physical or political action and such, then the writer of the blog, the company who paid him and provided the server space to host the files have made a contribution to humanity, even though no one "made money".

They have helped real people do a better job, make a more informed decision, judge a personal crisis in light of others' experience.

But that is completely irrelevant to you all, right? It doesn't put shoes on baby, or make the yacht payment. Your goal is to monetize information exchange, as has been done for the last few centuries, within this new medium.

This new medium, however, makes the control of information nearly impossible. It is a world of cut and paste, download and save, mail and post. Freedom of access and distribution is changing the world. It is speeding up science, forcing innovation in internet technology, bringing something much closer to democracy to the masses around the globe who can get to a internet access point.

I find the internet that consists of people wishing to help people for the sheer lust in the ability to share, connect and be of use, such as the software developers of sourceforge.net, ordinary bloggers and posters at myspace, vox, blogger, YouTube, and the like, something inordinately valuable and precious. A movement larger and with greater impact eventually than all the wealth someone like Bill Gates has accumulated.

I find the portion of the internet that consists of intellectual content created, designed and corralled with the main purpose of placing consumers in the presence of advertising to facilitate the exchange of money and goods to be a waste of electrons and metal equivalent to commercial television and commercial radio. Forget making money. Go make something real, help people, and the money will find its way. Not in ridiculous quantities, but sufficient amounts.

And you'll sleep better.

---------------------------------------------

But of course my problem, and your problem is that somehow the infrastructure and the people involved in making all this possible does have to be paid for. How to do that without the ghastly business of shotgun ads in your face, content that appeals to our basest and thus most widely shared natures (thank you, David Foster Wallace) and a limitation of access to information to those who have or can "pay" in some form?

????????
------------

And by the by, I really liked Gary's response. Seems the clearest description of what is really going on here.

Solution to Jasons problem

Since Jason is whining about his *copyrighted* content being re-purposed and sold in order for a third party to make money by showing people how to get to Jasons content, the solution is obvious...
Jason needs to submit a DMCA "take-down" notice to all the blogs, reposters, aggregators, newsfeeders and ISP's that host such people.
That will solve his problem in a heartbeat. It might create *new* problems (loss of goodwill for one), but hey Jason is a businessman, and he has to get used to being evil.

Darwin is dead

Something isn't right in the equation when the repository is the only making all of the money from the source. This isn't about taking 10,000 artists work, depositing it onto one collective web site and then the owner who data mined and then farmed the Internet put together.

The record industry once said something about wanting a "celestial jukebox in the sky" and I can buy into that analogy when it comes to these types of intangible issues that can only negligibly be tracked.

P.S. Darwin is dead. You should have looked on Wikipedia to find that out before you published that he recently spoke on this particular issue.